Source: Environmental Law Institute – Regulatory Reform
in the Trump Era 

ACTORS: President, Senate

On the campaign trail, candidate Trump threatened to “cancel” the Paris Agreement on climate change, implying this could be done through unilateral action; he now says he has an “open mind” on the issue. But the Agreement has entered into force and is now binding on the U.S. and other signatory nations (although there are few compulsory actions within it). Withdrawal from the Paris Agreement and/or the parent U.N.  Framework Convention on Climate Change is governed not only by U.S. law, but by the terms of those international agreements.

Process. On December 12, 2015, 195 countries reached the Paris Agreement, which commits to holding the global average temperature increase to “well below” 2°C and  includes intended target emissions reductions for the signatory nations. The United States signed the Agreement on April 22, 2016, submitted its formal acceptance on  September 3, and the Agreement entered into force on November 4 (after it was ratified by at least 55 countries producing 55% of global greenhouse gas emissions). As of December 2016, 192 countries and the European Union have signed the Agreement, and  128 of those have ratified or acceded to it, including the U.S., E.U., China, and India.

The Paris Agreement was negotiated under the U.N. Framework Convention on Climate  Change (UNFCCC), which was signed by President George H.W. Bush and ratified by the  Senate in 1992. The Obama Administration treated the Paris Agreement as an executive  agreement within the president’s existing authority to implement the UNFCCC, rather  than as requiring separate Senate ratification. The intention was to implement the U.S. target commitment of a 26%-28% reduction in greenhouse gas emissions through the  Clean Power Plan and other domestic measures.

The U.S. Constitution provides no  specific process for withdrawing from treaties, but the general rule is that they should be amended or terminated in the same manner they were made.1 Thus, under U.S. law the President may be able to unilaterally withdraw  from the Paris Agreement. But he also must follow the withdrawal procedure in the  Agreement itself, which requires a “cooling-off” period of at least three years from its entry into force, and another year before a notice of withdrawal takes effect. Alternatively, he could attempt to withdraw entirely from the UNFCCC, but would need  Senate approval (presumably by a two-thirds majority) to do so. Regardless of how a  party withdraws from the Agreement, it remains binding on the other signatory  countries.

Discussion. Unlike the Trans-Pacific Partnership Agreement, from which President Trump immediately withdrew, the Paris Agreement has been signed by the U.S. and  entered into force. Given Trump’s campaign promise to “cancel” the Agreement, he could issue an immediate executive order stating his intent to withdraw, which would at a minimum signal to executive branch agencies that they should not attempt to implement it. He has also proposed to defund U.S. financial commitments under the Agreement. But  a formal notice of withdrawal could not be sent until November 4, 2019, and would not go into effect until November 5, 2020 – two days after the next presidential election.

The Administration instead could attempt to withdraw from the parent UNFCCC, which would effectively withdraw from the Paris Agreement as well. But that withdrawal  would likely face a difficult Senate vote, or a constitutional challenge if the President were to attempt it without the Senate’s advice and consent. On the other hand, it has been suggested that the President might simply submit the Paris Agreement to the Senate for formal ratification, which would almost certainly fail to attract two-thirds support, and then declare it a dead letter. But it is questionable whether such a maneuver could negate President Obama’s accession to the Agreement, considering that is has already entered into force.

Another possibility is that the Administration may choose to remain part of the Paris Agreement, while doing little to implement it. At his confirmation hearing, Secretary of State Rex Tillerson said, “It’s important that the United States maintains its seat at the table about how to address the threat of climate change, which does require a global response.” The Agreement’s target emissions reductions are non-binding, and failure to meet them would carry no official sanction. But the loss of U.S. leadership on the world stage would deal a significant blow to the Agreement’s ambition of even greater global reductions.

Action Areas to Watch. The Paris Agreement, UNFCCC, Clean Power Plan and other domestic measures to implement Paris greenhouse gas commitments. Note that the Obama Administration also agreed to the Kigali Amendment to the Montreal Protocol, governing phase-out of hydrofluorocarbons (HFCs); but that treaty has not entered into force and likely would require Senate ratification.

1 See John Pendergrass, “Rhetoric or Reality: What Would Withdrawal From the Paris Agreement Require?”, https://www.eli.org/vibrant-environment-blog/rhetoric-or-reality-what-would-withdrawal-paris-agreementrequire .